The High Court set aside an order renewing a plenary summons brought by Gerald Kellegher and Anne Kelleher against their former solicitors, finding that no good reason had been given for the renewal.
The summons, issued in September 2003, claimed damages for personal injuries and other loss allegedly caused by negligence, breach of contract and breach of duty by Raymond Bradley and Frank Lanigan, trading as Malcolmson and Law Solicitors. The underlying negligence claim was separate from the Kelleghers’ earlier proceedings over alleged construction defects in their home.
The summons was renewed ex parte on 14 February 2005 for three months. The application relied on an affidavit from solicitor Andrew Dillon, who said he had believed the related proceedings would progress sufficiently to make the new case unnecessary. He said unforeseen circumstances later meant the case would have to proceed. The defendants were served on 6 May 2005 and then sought to set aside the renewal, arguing that the affidavit did not disclose a good reason.
The Kelleghers told the court they had not known about the renewal application or seen the affidavit. They alleged that Dillon Mullins & Company had sought to protect legal colleagues, and said setting aside the renewal would leave any later claim against Malcolmson Law statute-barred. Those were their submissions; the judgment did not determine the merits of the negligence claim or those allegations.
Justice Dunne reviewed authorities on renewing summonses, including the principle that preventing a defendant from relying on the Statute of Limitations is not, by itself, a good reason. She acknowledged the plaintiffs’ difficulties with their legal representation but concluded that those difficulties were insufficient to justify renewal.
The court granted the defendants’ application and set aside the renewal order. The judgment did not decide the underlying negligence claim against the solicitors.